December 12, 2012 "Information
Clearing House"
- The last several years have found us in the
midst of more catastrophes than we could ever, in our worst
nightmares, have dreamed of. We could never have envisaged
that the history of the new century would encompass the
destruction and distortion of fundamental Anglo-American
legal and political constitutional principles in place since
the 17th century.

Habeas
corpus has been abandoned for the outcasts of the new order
in both the US and the UK, secret courts have been created
to hear secret evidence, guilt has been inferred by
association, torture and rendition nakedly
justified (in the UK our government's lawyers
continue to argue positively for the right to use the
product of both) and vital international conventions
consolidated in the aftermath of the Second World War - the
Geneva Convention, the Refugee Convention, the Torture
Convention - have been deliberately avoided or ignored.

It is
the bitterest of ironies that John Lilburne, the most
important organizer of the rights we in this country and the
United States claim and on which our respective
constitutions, written and unwritten, were built, achieved
this in large part as a consequence of his having been
himself subjected to torture, to accusations based on secret
evidence and heard by a secret court, to being shackled and
held in extremes of isolation which exposed him nevertheless
to public humiliation and condemnation.

The
worst excesses of the last ten years, which destroyed the
certainties of those hard-won rights, should have sounded
loud alarms, not least because of that precise historical
parallel; one key in attempting to hang on to legal and
moral concepts under attack is to remember their origin.

Lilburne, an intractable young Puritan, with a strong sense
of his rights as a freeborn Englishman and a smattering of
law, in 1637 was summoned before the Court of Star Chamber -
a court comprising nothing more than a small committee of
the Privy Council, without a jury, empowered to investigate.
Lilburne had recently been in Holland and was charged, o n
the basis of information from an informant, with sending
loosely defined "fatuous and scandalous" religious books to
England. His defence was straightforward: “I am clear I have
sent none.” Thereafter he refused to answer questions based
on allegations kept secret from him as to his association
with others suspected of involvement in the sending of the
books: “I think by the law of the land that I may stand upon
my just defence, and that my accusers ought to be brought
face to face to justify what they accuse me of.” For his
refusal, he was fined 500 pounds, a fortune for an
apprentice, and was lashed to a cart and whipped thought the
streets of London from Fleet to Westminster.

Lilburne was locked in a pillory in an unbearable posture
(in today’s terminology a “stress position”), but yet
exhorted all who would listen to resist the tyranny of the
bishops, repeating biblical texts to the crowd applicable to
the wrongs done to him and their rights. On being required
to incriminate himself: “No man should be compelled to be
his own executioner.” He survived two and a half years in
Fleet prison, gagged and kept in solitary confinement,
shackled and starving. The first act of the Long Parliament
in November 1642 was to set him free, to abolish the Court
of Star Chamber and to adopt a resolution that its sentence
was “illegal and against the liberty of the subject, and
also bloody, cruel, wicked, barbarous and tyrannical.”

Lilburne’s principled and public stance and the
extraordinary political movement of which he was part, the
Levellers, produced far more than a brief reaction of
abhorrence to the use of torture and arbitrary imprisonment.
By the end of the 17th century, there had crystallized the
foundation of the concepts upon which we draw now (and which
we constantly choose to forget or ignore) – most importantly
the concept of inalienable rights that pertain to the
individual and not to the state. The Levellers insisted that
the inalienable rights were possessed by the people and were
conferred on them not by Parliament, but by God; no
justification by the state could therefore ever justify
their violation. For the preservation of these and the
limitation of parliamentary power, the Levellers formulated
a written constitution; never adopted in England, in the new
world it became a political reality. In both countries, due
process – the legal concept that gives effect to the idea of
fairness – was born from these ideas.

Once
evidence of any country’s willingness to resort to torture
is exposed, reactions of decency and humanity can be invoked
without the necessity of legal explanation. Less likely is
any instinctive reaction to evidence in the destruction of
concepts of procedural fairness. Yet, in the imprecision and
breadth of accusations, leading in turn to the banning of
books and the criminalization of ideas and religious
thought, and in the wrong committed by secret courts hearing
secret evidence, the lessons of John Lilburne and Star
Chamber have been in the last ten years deliberately
abandoned and sustained battles have still to be fought to
reclaim the majority.

The
shocking, reckless and ruthless disregard of all of these
concepts seen in recent years is neither new nor unique to
this country or to the US. The history of regions other than
our own shows how fragile are the laws and their
applications that we assume protect us when faced with a
government determined to follow a contrary path. Repeatedly,
historically, even nations which have recently emerged from
the fires of hell remember the experience as it relates to
themselves, but yet consign others to the same fate.

Fewer
than ten years after then end of WWII, and only eight years
from the UN Declaration of Human Rights, the first reports
of the use of torture by the French against the Algerians
fighting their war of independence began to emerge, with
justifications that today appear very familiar. The first
official reports in 1955 admitted some violence had been
done to prisoners suspected of being connected to the FLN,
but that this was “not quite torture”; “The water and the
electricity methods, provided they are properly used, are
said to produce a shock which is more psychological than
physical and therefore do not constitute excessive cruelty.”

Sartre
articulated the shock of realizing that torture had
reappeared and was being justified so soon after it had been
categorized as an aberration found only among psychotic and
degenerate governments willing to violate all universally
understood and recognized principles of justice: “In 1943 in
the Rue Lauriston, Frenchmen were screaming in agony and
pain; all France could hear them. In those days the outcome
of the war was uncertain and we did not want to think about
the future. Only one thing seemed impossible in any
circumstances: that one day men should be made to scream by
those acting in our name.”

The
illustration on the cover my book, Dispatches From the
Dark Side,
is of Shafiq Rasul, a young Englishman from Tipton in the
West Midlands, who within hours of returning from unlawful
captivity in Guantanamo Bay understood the need to put on
record the reality of imprisonment there. For the next
month, with Asif Iqbal and Ruhal Ahmed, he struggled to
prepare a report, illustrated by sketches in the absence of
any photographs, of what had been done to them. Soon
thereafter, the legal challenge his family had initiated
when he was first reported to be in Guantanamo (Rasul v.
Bush) was decided by the US Supreme Court in favor of Shafiq
Rasul. What argument was won? That the prisoners in
Guantanamo Bay should have access to legal remedies and to
lawyers who could, most importantly of all, for the first
time go in and, bit by bit, bring out reports, not just of
the physical and mental horrors inflicted by or on behalf of
Americans, but of the complicity of this country (at every
level) in their unlawful captivity.

We
were never meant to know any of this. The still-unanswered
question of burning relevance, however, remains: once we
know, what do we then do?

Gareth Peirce is a British lawyer who represents individuals
who have been the subject of rendition and torture, or held
in captivity on the basis of secret evidence. This excerpt
is from her new book, Dispatches from the Dark Side: On
Torture and the Death of Justice (Verso).

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